Industrial Tribunals Northern Ireland Decisions

 


Telford v Maybin Property Support Services (NI) Ltd (t/a Maybin Security & Guarding Services) (Unfair Dismissal) [2002] NIIT 02618_00 (10 May 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 02618/00

APPLICANT: Frederick Telford

RESPONDENT: Maybin Property Support Services (NI) Ltd

T/a Maybin Security & Guarding Services

DECISION

The unanimous decision of the Tribunal is that the Respondent unfairly dismissed the Applicant.

Appearances:

The Applicant was represented by Mr G Chesney, of Counsel, instructed by Cubitt & Co, Solicitors.

The Respondent was represented by Mr Hill, Peninsula Business Services Limited.

Extended Reasons:

Pursuant to Rule 10(4)(d) of Schedule 1 of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 1996, this Decision is given in extended form.

The Tribunal Found the Following Facts

1. The Applicant was born on 16 June 1942. In his Originating Application, presented on 2 October 2000, the Applicant complained of unfair dismissal on 23 September 2000, and sought the remedy of re-instatement. In evidence before the Tribunal, the Applicant stated that he now sought the remedy of compensation. At the effective date of termination of employment, the Applicant earned £177.60 gross per week and £150.49 nett per week. In its Notice of Appearance, presented on 2 November 2000, the Respondent denied unfairly dismissing the Applicant. Its case was that following the transfer of security guarding services to it, it was forced to re-organise its rostering system. The Applicant refused to work this new system, and after some discussions, the Respondent felt compelled to terminate the Applicant's contract of employment on 18 August 2000, and offer him a new contract on terms that included the new rostering system to take effect from 23 September 2000. The Respondent felt that if it failed to do so, it might loose the contract for guarding the premises where the Applicant worked. The Applicant refused this offer of new employment. The Respondent contended that the dismissal was for some other substantial reason and was fair in all the circumstances.
2. The Tribunal found that the Applicant started working for the Respondent's predecessors in July 1995. From July 1995, he worked at the Ballykeel site in Ballymena working 48 hours per week. His shift pattern was Monday, Tuesday, Wednesday and Thursday nights 7pm – 7am. In February 2000, this arrangement changed by agreement to 6pm – 6am. His other workmates were Mr Logan (who worked 48-60 hours per week), Andy Kerr (who worked 12-24 hours per week; Friday – Sunday nights) and Mr Carson (who worked 60 hours per week Monday – Monday with 2 days off per week). The Applicant was informed by letter from his then employer, Group 4 Securitas, that his employment would transfer to the Respondent with effect from 16 August 1999. This letter also stated;

"Your manager would have explained that under the rules of transfer, those transferring would do so keeping their continuity of employment, i.e., keeping their original start dates and with their terms and conditions of employment no less favourable than they enjoyed under Group 4".

3. Moreover, shortly after the 16 August 1999, Mr Hynds (Respondent Manager) called to see the Applicant at Ballykeel and assured him that his hours of work would remain the same, although he could not guarantee that his pay would increase. At that time the Applicant was earning £177.60 per week gross and £150.49 nett. He compiled the weekly rosters as part of his duties. Throughout his period of employment with the Respondent and its predecessors, the Applicant had had a number of other part-time jobs, including occasionally erecting televisions aerials, and delivering Chinese take-away meals. The Applicant earned about £20 per month from working on the TV aerials.
4. The nearest Respondent site to Ballykeel is County Hall at Ballymena, which is circa three miles away and where the Respondent employs 8-10 guards. The Respondent has one female guard who works as and when required at County Hall and provides holiday and other cover. This employee started this employment at the end of 1999. There was no tradition of the Respondent operating a pool of guards to work between County Hall and Ballykeel.
5. In October 1999, Mr John Carson was transferred from County Hall, Ballymena to Ballykeel, when a Mr Hoey failed to turn up for work. Mr Carson remained at the Ballykeel site. Thereafter, he was also asked by Mr Haggan (Respondent Assistant Operations Manager) to compile the roster sheets, and was paid for this additional duty. At that time, the Applicant was the longest serving guard on the site. Mr David Hynds (Respondent Manager) wrote to the Applicant on 13 October 1999 to advise that there was discontent amongst the guards at Ballykeel owing to, inter alia, lack of flexibility in that some guards wanted to work set nights each week. Mr Hynds proposed a new roster to take effect from 1 November 1999, and which would have meant the Applicant had to work on rotation some weekend nights. The Applicant refused to work the amended roster. The roster did not come into effect on 1 November 1999. A similar letter proposed a change in shift patterns to commence on 31 January 2000, but this was not implemented either, except to the extent that the Applicant was asked if he would work 6pm - 6am instead of 7pm – 7am. The Applicant wished to show some flexibility, and agreed to this change. Otherwise, the Applicant had shown some flexibility in covering for other employees who did not come to work on time or at all. He had indicated to his employers that, if they were stuck, he would work weekends, but not on a regular basis. One such employee was Mr Hoey, whom the Respondent later dismissed. Mr Hoey's replacement was Mr Carson, who transferred to Ballykeel in or about October 1999. Another employee was Mr McMaster, who later left the Respondent to go to other, better paid, employment. Mr David Logan, who is related to Mr Carson by marriage, replaced Mr McMaster. Mr Carson recruited Mr Logan by word of mouth. A Mr Kerr worked either Friday and Saturday, or Saturday and Sunday nights. However, he left the Respondent's employment in July 2000 to run a public house. A Mr McFadden and a Mr Morgan were employed to weekend nights at Ballykeel from 25 August 2000.
6. In March 2000 there was low morale on the Ballykeel site. Mr Carson and the Applicant did not get on well, as the Applicant felt that Mr Carson has appointed himself as the Supervisor. On a Monday night in March 2000, the Applicant noticed that someone had written, "Telford is on his way out". On another occasion in March 2000, when the Applicant had circled his holidays on the calendar in the site security hut, a Mr Logan wrote on the calendar "Telford not getting them". Mr Haggan gave evidence that most of the complaints about having to work weekends came from Mr Carson and Mr Logan, who opined that they were unable to attend church functions and recreational activities because of their work commitments. On another occasion, Mr Carson took down a list of new telephone codes that the Applicant had erected on the wall of the security hut. In April 2000, someone telephoned the Applicant and asked him to erect a TV aerial. The Applicant asked the caller how he had obtained the Applicant's number. The caller referred to a newspaper advertisement in the Ballymena Guardian. The Applicant had placed no such advertisement, but later confirmed that such an advertisement had been paced in the newspaper giving the telephone numbers of the security hut at Ballykeel and the Applicant's home number, which is ex-directory. The Applicant complained of this advertisement to Mr Holmes (Respondent Manager), and Mr Hynds made some investigation of this complaint, but could not ascertain who had placed the advertisement in the newspaper. Mr Carson requested the Applicant to go to a training session in Belfast on 22 April 2000, which was Easter Saturday. When the Applicant arrived for this training, he was advised that there was no such training on that day, and he had to go home again. Later, when the Applicant complained about this wasted trip to Mr Haggan, Mr Haggan said that he had left a message on the Applicant's answering machine to advise there was to be no such training. The Applicant does not have a telephone answering machine. The Applicant was not requested to attend any further training session after 22 April 2000.
7. From August 1999 to June 2000, Mr Haggan spoke to the Applicant on a number of occasions and asked him to consider working at weekends. The Applicant continued to refuse to vary his shift pattern. On 5 June 2000, Mr Carson wrote to Respondent management to complain that, since September 1999, 5 guards (Mr Hoey, Mr McMaster, Mr Wylie, Mr Kerr and Mr McCullough) had resigned because of the "total inflexibility of one guard namely Fred Telford. I must say that in my time here I have found that his attitude and behaviour towards his fellow workers is totally intolerable. He insists on working Monday to Thursday each week with every weekend off, consistently refuses to work any kind of shift pattern and totally refuses to work overtime". The letter sought that management would "take these matters on board and act accordingly". The Applicant met Mr McBratney and Mr Haggan on 7 June 2000 to discuss this complaint. At the meeting, the Applicant was told that a new system of rostering would be introduced in five weeks time, because the Applicant had five years service. On 25 July 2000, Mr Haggan wrote to the Applicant to advise that the new rostering system would be introduced with effect from 29 August 2000. Mr Haggan gave evidence that he wrote this letter because Mr Logan and Mr Carson had threatened to leave if the new roster system were not introduced. However, the Respondents did not dispute with the Applicant that he had been given the assurance by Mr Hynds that his hours of work would not change.
8. On 18 August 2000, the Applicant received a letter from Mr Paul Holmes (Respondent Divisional Manager), which advised the Applicant that he would have to join the other guards at Ballykeel in working a shift cycle and that the Respondent had "no alternative but to terminate" his existing contract of employment, with five weeks notice, to end on 23 September 2000. At the end of this period of five weeks, the Respondent would offer the Applicant re-employment on terms that obliged the Applicant to work the hours the Respondent desired him to. Moreover, the Applicant met Mr McBratney (Respondent Manager) Mr Holmes and Mr Haggan on 18 August 2000, and explained to them that he had been hassled for months about working weekends, which he did not wish to do because his wife works during the day. If the Applicant were forced to work nights, then he and his wife would have minimal contact.
9. The Applicant went on holiday for a fortnight from 20 August 2000. He received only one week's holiday pay £150.00 instead of two.
10. As the Applicant could not accept the proposed new contract, his effective date of termination of employment was 23 September 2000. Since his employment with the Respondent ended, the Applicant was promised a job with Guardforce. However, despite the fact that he has phoned this company once a week since then, this offer has never materialised. The Applicant has also contacted Group 4 for alternative work, without success. He continued to earn about £50-60 per month from erecting of TV aerials. He has not claimed and is not in receipt of any state benefits as a result of the dismissal.

THE DECISION OF THE TRIBUNAL

11. Having considered the Originating Application, Notices of Appearance, all the evidence before it (oral and documentary) and the representatives' submissions, the Tribunal unanimously determines as follows;

(i) The Tribunal has been mindful of its duty, generally and in particular pursuant to Article 6 of Schedule 1 of the Human Rights Act 1998, to provide both parties to this application with a fair hearing and trial of the issues. The Tribunal wishes to restate that it has borne this duty in mind throughout the hearing of these complaints.

(ii) The Tribunal is satisfied that the Applicant was assured by letter of 16 August 1999 that his "terms and conditions of employment [would remain] no less favourable than …enjoyed under Group 4", and that this reassurance was further entrenched by Mr Hynds when he called to see the Applicant shortly after 16 August 1999. Whilst it accepts that the Respondent faced logistical difficulties in providing weekend cover at the Ballykeel site, the Tribunal determines that the Respondent, in reaching the decision to terminate the Applicant's contract of employment because it had no other alternative but to do so, acted unfairly. There was a reasonable alternative open to the Respondent. Given the Respondent's size and administrative resources, it could have brought in operatives from the County Hall site at Ballymena, which was only three miles away, and which operated a much larger pool of security guards, including one guard who worked on an as and when basis from the end of 1999. Evidence of the alternatives open to the Respondent is the fact that it was able to employ Mr McFadden and Mr Morgan to cover weekend nights from August 2000. This would have been reasonable, given that the Applicant was the longest-serving guard at Ballykeel and had been given the assurances above. The Tribunal is of the view that the Applicant was not inflexible; he had changed his shift patterns from 7pm - 7am to 6pm - 6pm from or about January 2000.

(iii) The Tribunal is satisfied that there was low morale on the Ballykeel site, and an atmosphere of considerable friction between the guards from or about October 1999, when Mr Carson assumed the duties as Supervisor. Thereafter, there were unfortunate incidents where, the Tribunal accepts, Mr Telford was the butt of hurtful comments, including, "Telford is on his way out", and (in respect of his holiday entitlement) "Telford is not getting them", the incident of the advertisement in the Ballymena Guardian, and the debacle of the training day on Easter Saturday. The Respondent acted unreasonably in its reaction to the letter from Mr Carson of 5 June 2000, in that it did not appear to balance Mr Carson's complaint against this background of workplace disharmony. Moreover, the letter was factually incorrect when it complained that a number of guards had left the Respondent's employment because of the Applicant's inflexibility; some of the employees mentioned had left for other reasons. Therefore, the Tribunal is unanimously of the view that the Applicant was unfairly dismissed – contrary to Article 126 of the Employment Rights (NI) Order 1996 ["the 1996 Order"] - on 23 September 2000, on which date the Applicant was aged 58 years. The reason for the dismissal was a reason falling within Article 130(1)(b) of the 1996 Order, in that the Applicant refused to agree to the unilateral variation of his contract of employment by the Respondent. The Tribunal determines that there is no evidence to support the Respondent's assertion that it may have lost the contract at Ballykeel if it had not enforced the new contract upon the Applicant. In deciding to terminate the Applicant's employment, the Respondent's decision fell outside the band of reasonable responses open to it, contrary to Article 130(4) of the 1996 Order.

(iv) The Applicant did not contribute to his dismissal. He had offered to cover for other employees from time to time, and to cover weekends, provided that this did not become a regular feature of his work pattern. He had also changed his hours of work to 6pm - 6am.

12. On his Originating Application, the Applicant claimed reinstatement, but before the Tribunal now seeks compensation as his remedy. Pursuant to Articles 152 – 158 of the 1996 Order, the Tribunal now Orders the following compensation to the Applicant;

(A) BASIC AWARD

£177.60 x 5 x 1.5 = £1, 332.00 = £1,332.00

The Tribunal determines that there shall be no reduction in the amount at (A) above, pursuant to Article 156(2) of the 1996 Order.

(B) COMPENSATORY AWARD

Pursuant to Article 157 of the 1996 Order, the Tribunal now orders the following compensatory award to the Applicant. Pursuant to Article 157(6) of the 1996 Order, the Tribunal determines that there shall be no reduction in the amount below. Moreover, the Tribunal is satisfied that the Applicant has not failed to mitigate his loss in that he has applied for a job with Group 4 and has telephoned Guardforce once per week since his dismissal in an attempt to secure further employment. Therefore, the Tribunal determines that there should be no reduction in the amount below, pursuant to Article 157(4) of the 1996 Order.

Immediate Loss

Loss of salary from 24 September 2000

to 8 January 2002 (£150.49 x 68 weeks) = £10,233.32

Future Loss

Loss of salary from 8 January 2002

for 25 weeks (£150.49 x 25) = £ 3,762.25

Loss of Statutory Rights = £ 250.00

Total Compensatory Award = £14,245.57

(C) TOTAL MONETARY AWARD (A) + (B) = £15,577.57

(D) PRESCRIBED ELEMENT = £ 1,332.00

Period of Prescribed Element –

24 September 2000 – 8 January 2002

Amount by which the amount at (C) exceeds

the amount at (D) = £14,225.57

13. No further or other Order is made. In particular, the Tribunal declines to make any Order for interlocutory costs.

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

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Date and place of hearing: 6 July and 10-11 September 2001,

7-8 January 2002, Belfast

Date decision recorded in register and issued to parties: 10 May 2002